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1996 Supreme(Guj) 98
Gujarat High Court
Judgename :A.N.Divecha
Khushalbhal Nathubhai Patel - Appellant
Versus
STATE - Respondent
S.C.A. 2197 of 1988
Decided On : 02/27/1996
Headnote:Urban Land (Ceiling & Regulation) Act, 1976 - Secs. 2(h), 2(q) 8(1) & 8(4) - Declaring holding of petitioner in excess of ceiling limits - Validity depends on applicability or otherwise of the binding ruling of Supreme Court in case Smt. Atia Mohammadi Begum vs. State of U. P. others, AIR 1993 SC 2465 - In that regard ascertainment of certain factual positions as to whether or not there was in existence any master plan, situation of disputed land therein and whether or not agricultural operations were in fact carried on therein on the date of coming into force of the Act necessary - As a result all orders in this regard passed set aside - Matter remanded back to competent authority for his fresh decision - Constitution of India, Arts. 226 & 227.This petition will have to be remanded to respondent No. 3 for deciding the applicability or otherwise of the binding ruling of the Supreme Court in the case of Atia Mohammadi Begum (Smt.) vs. State of U. P. & others, reported in AIR 1993 Supreme Court 2465.[Para 3Learned Assistant Government Pleader Shri Patel for the respondents is right in his submission that certain factual position will have to ascertained before deciding the applicability or otherwise of the aforesaid binding ruling of the Supreme Court. It is necessary to find out whether or not there was in existence any master plan answering its definition contained in sec. 2(h) of the Act, the situation of the disputed land therein, and whether or not agricultural operations were in fact carried on therein on the date of coming into force of the Act. The applicability or otherwise of the aforesaid binding ruling of the Supreme Court will depend on findings on the aforesaid three questions.[Para 4]The matter has to be remanded to respondent No. 3 for restoration of the proceeding to file and for his fresh decision according to law in the light of this judgment of mine. [Para 5]
( 1 ) THE order passed by and on behalf of the State of Gujarat (respondent no. 1 herein) on 23rd March 1988, as also the order passed by the Urban Land Tribunal at ahmedabad (the appellate authority for convenience) on 4th July, 1988 in Appeal No. Surat-59 of 1986 are under challenge in this petition under Articles 226 and 227 of the constitution of India. By their impugned order, respondent No. 1 and the appellate authority affirmed the order passed by the Competent Authority at Surat (respondent No. 3 herein) on 29th January 1986 under sec. 8 (1) of the Urban Land (Ceiling and regulation) Act, 1976 (the Act for brief ). By his impugned order, respondent No. 3 declared the holding of the predecessor-in-title (the deceased for convenience) of the present petitioner to be in excess of the ceiling limit by 4500 square metres.
( 2 ) THE facts giving rise to this petition move in narrow compass. The deceased filed his declaration in the prescribed form under sec. 6 (1) of the Act with respect to one parcel of land bearing survey No. 571 admeasuring 17300 square meters situated at Vesu within the urban agglomeration of Surat (the disputed land for convenience ). It may be mentioned at this stage that it was purchased by the petitioner together with six other person by a registered document executed on 5th October, 1965. The deceased therefore filed the declaration under sec. 6 (1) of the Act for and on behalf of 7 co-owners including himself and the other six co-owners. Its copy is at Annexure H to this petition. That form was fuly processed by respondent No. 3. Pursuant to the draft statement served under sec. 8 of the Act, the deceased filed his objections thereto on 17th December 1985. A copy thereof is at Annexure A to this petition. Thereafter, by his order passed on 28th January 1986 under sec. 8 (4) of the Act, respondent No. 3 declared the holding of the deceased and the other six co-owners to be in excess of the ceiling limit by 4500 square meters. Its copy is at Annexure B to this petition. It appears that it came to the notice of the concerned officer of respondent No. 1. He appears to have found it not according to law. Its suo motu revision under sec. 34 of the Act, was therefore, contemplated. Thereupon a show-cause notice came to be issued on 2nd April 1986 under sec. 34 of the Act calling upon the deceased to show cause why the order at Annexure B to this petition should not be revised. A copy of the aforesaid show-cause notice is at Annexure C to this petition. Thereafter, by the order passed on 23rd March, 1988, under sec. 34 of the Act, respondent no. 1 affirmed the order at Annexure B to this petition. A copy of the order passed on 23rd March 1988 is at Annexure E to this petition. It appears that in the meantime the deceased had carried the matter in appeal before the appellate authority under sec. 33 of the Act. It came to be registered as Appeal No. Surat- 59 of 1986. Before the fate of the aforesaid appeal could be decided, the order at Annexure E to this petition came to be passed. Thereupon, the deceased approached this Court by means of this petition under sec. 226 of the Constitution of India for questioning the correctness of the order at annexure E to this petition. By one interim order passed by this Court on 28th June 1988 in this petition, this Court directed the appellate authority to dispose of the appeal preferred by the deceased on its own merits uninfluenced by the impugned order at annexure E to this petition. Thereupon, by the order passed on 4th July, 1988, in the aforesaid appeal, the appellate authority dismissed it. Its copy is at Annexure-Q to this petition. During the pendency of this petition the original petitioner, breathed his last leaving behind him the present petitioners, as his heirs and legal representatives. They have come on record in his place by virtue of the order passed by this court on 1st december, 1922, in Civil Application No. 305 of 190 made in thi
